261 F.2d 719 (9th Cir. 1958), 15996, Lee Hon Lung v. Dulles

Docket Nº:15996.
Citation:261 F.2d 719
Party Name:LEE HON LUNG, Appellant, v. John Foster DULLES, Secretary of State of the United States of America, Appellee.
Case Date:November 10, 1958
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 719

261 F.2d 719 (9th Cir. 1958)

LEE HON LUNG, Appellant,

v.

John Foster DULLES, Secretary of State of the United States of America, Appellee.

No. 15996.

United States Court of Appeals, Ninth Circuit.

November 10, 1958

Page 720

N.W.Y. Char, Honolulu, Hawaii, for appellant.

Louis B. Blissard, U.S. Atty., Charles B. Dwight, III, Asst. U.S. Atty., Honolulu, Hawaii, for appellee.

Before ORR, POPE and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Lee Hon Lung brought this action against the Secretary of State for a judgment declaring plaintiff to be a citizen of this country. 1 After a trial without a jury, judgment was entered for defendant. On appeal, plaintiff raises questions pertaining to the burden and standard of proof, findings of fact, admissibility of evidence, and the denial of a motion for a new trial.

The case appellant sought to prove may be briefly summarized. He was born in Honolulu, Territory of Hawaii, on April 4, 1899. When about seven months old, he left Honolulu for China with his father, mother, and brother. He returned to Honolulu in 1923. On January 7, 1924, a board of special inquiry of the immigration service rendered a decision admitting appellant as a Hawaiian-born citizen of the United States. Since then he has resided continuously in Honolulu. In April 1957, the Department of State denied his application for a passport on the ground that he was not a national of the United States.

The Government conceded that appellant arrived in Honolulu in 1923, and was admitted by a board of special inquiry as a citizen of the United States. It also conceded that appellant has resided in Honolulu continuously since that time. It denied that appellant was in fact born in the Hawaiian Islands, thus challenging the 1924 board decision to that effect. The trial court adopted the Government's view of the evidence.

As the plaintiff in this declaratory judgment action, appellant had the burden of proving that he is an American citizen. The burden of proof which rested upon him was the ordinary burden of proof resting on plaintiffs in civil actions. He was thus required to establish his citizenship by a fair preponderance of the evidence. Lau Ah Yew v. Dulles, 9 Cir., 257 F.2d 744.

He established a prima facie case by showing that on January 7, 1924, a special board of inquiry had admitted him as an American citizen. This 1924 determination, however, was not res judicata. The Government was entitled to overcome this prima facie case, if it could, by showing that the 1924 determination had been obtained by fraud or error. Et Min Ng v. Brownell, 9 Cir., 258 F.2d 304. 2

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The trial court found in effect that the 1924 board decision had been obtained by fraud or error. 3 In making this finding the court determined that the affirmative rebutting evidence offered by the Government was of at least equal weight with appellant's evidence, including the 1924 board decision. The court did not require of the Government any special standard of proof. It apparently considered that the rebutting evidence should prevail if it seemed at least equally as persuasive as all of the evidence submitted by appellant. 4

Appellant contends that the trial court erred in not holding the Government to a higher standard of proof in rebutting appellant's prima facie case. He argues that the Government's rebutting evidence tending to show fraud or error could not overcome this kind of a prima facie case unless it was 'clear and convincing.'

Appellant cites Delmore v. Brownell, 3 Cir., 236 F.2d 598, in support of this view. While residing in Italy, Delmore obtained a letter from the Commissioner of Immigration stating that it appeared that Delmore was born in San Francisco, as he had claimed. It was further stated in this letter that it was the view of the service, in the light of the facts submitted and considered, that 'Delmore may properly be regarded a native and citizen of the United States.' In affirming a judgment declaring Delmore to be a citizen, the court said, at page 600:

'* * * Once the United States has determined that an individual is a citizen, it should be required to disprove its own determination by 'clear, unequivocal, and convincing evidence' * * *.' 5

In Delmore, the court stated that a different rule might be in effect in the Ninth Circuit, citing Mah Toi v. Brownell, supra. The Third Circuit opinion states that the ruling in Mah Toi was clouded by a concession referred to in the Mah Toi opinion. 6 It was made clear,

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however, that the Third Circuit would adhere to the rule announced in Delmore even though Mah Toi be regarded as stating a contrary rule.

It may or may not be that the rule announced in Mah Toi is clouded by a concession. In any event, that decision is not in point because the prima facie case there established did not consist of a favorable decision by a board of special inquiry. Instead, it consisted of proof of a California superior court judgment reciting that the plaintiff had been born in the United States. We held that, under California law, such a judgment should be accorded the same evidentiary value as an ordinary birth certificate. The standard of proof necessary to overcome that kind of a prima facie case is not necessarily the same standard which is to be applied here.

In arguing that the Government is chargeable with only the ordinary standard of proof in rebutting a prima facie case of the kind which appellant established, appellee cites Louie Hoy Gay v. Dulles, 9 Cir., 248 F.2d 421; Mah Toi v. Brownell, supra; and Ly Shew v. Dulles, 9 Cir., 219 F.2d 413.

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